Sunday, 21 August 2011

It was surprising to be reminded that court processes are based on evidence and not personal opinions. This reminder came in a recent case, Herridge and Henderson. The trial judge's views seemed to outweigh the evidence both as to ADHD and family violence. The trial judge's victim blaming was rejected, at least for a lack of reasons. The mother's appeal was successful.

ADHD

In that case an expert, Dr B gave evidence that the son the subject of the court proceedings had some degree of ADHD. His evidence was unchallenged- at least in court.

When judgment was delivered, the judge was skeptical about this evidence, because of an editorial from the Sydney Morning Herald:

I
am not in a position to say whether there is any substance in this claim [ as to ADHD]. I do
know that the diagnosis of ADHD and the use of Ritalin
and the like to treat so
called sufferers is still controversial with some authoritative opinion to the
effect that it is over diagnosed,
or does not exist and is sometimes
“used as a crutch” by medical professionals loath to tell
parents that their child is “ill-disciplined”, and that
Ritalin is over prescribed and used “as a crutch by parents and/or
teachers in response to children whose real need is better parenting or
teaching” (Sydney Morning Herald, Editorial p12 (25.01.2011))

The Full Court of the Family Court was critical of the use of the editorial, both because none of the parties had been accorded procedural fairness as to its intended use, and because it was not evidence from an expert:

It
is not in doubt that, until the delivery of judgment, none of the parties to the
proceedings before him had any indication that
the trial Judge was going to rely
upon the material to which he referred in his reasons for judgment.

To
the extent that the newspaper editorial was regarded by the trial Judge as
evidence, no party had the opportunity to test it. No
party had any opportunity
to make submissions about the material, whatever its potential status may have
been. Quite apart from the
trial Judge’s failure to afford the parties
natural justice, the statements from the Sydney Morning Herald reiterated by the
trial Judge do not appear to be those of a person who was qualified to make or
express such opinions and would not have been admissible.

Sensibly,
Counsel opposing the mother’s appeal acknowledged that, as a matter of
natural justice, the trial Judge had erred
by referring to the material from the
Sydney Morning Herald. Necessarily, it was submitted on behalf of the parties
opposing the
mother’s appeal that, although referring to it, the trial
Judge could not be said to have relied in any discernable way on
the statements
in the Sydney Morning Herald editorial....

(W)e are persuaded that the trial Judge did rely upon what he
apparently read in the Sydney
Morning Herald editorial in concluding as he did
with respect to the child B’s likely future use of Ritalin. To read the
three
paragraphs is instructive, and supportive of our conclusion.

The
trial Judge referred to the children’s behavioural problems, and observed
that Dr R “seems to accept that [the child
B] has a degree of ADHD”.
His Honour recorded, accurately, that the father and his “side of the
family” questioned
the diagnosis of ADHD for the child B and suggested
that “reliance on Ritalin is a substitute for ill-discipline in the
mother’s
household”. As was conceded before us, Dr R did accept that
the child B exhibited ADHD “to some degree”. No party
at trial
challenged Dr R’s expert opinion evidence in that regard.

In
a passage which was understandably relied upon significantly by Counsel
resisting the mother’s appeal, the trial Judge said
the he was “not
in a position to say whether there is any substance in this claim”, i.e.
the claim of the father and
his family. How his Honour came to “know that
the diagnosis of ADHD and the use of Ritalin and the like to treat so called
sufferers (emphasis added) is still controversial with some authoritative
opinion to the effect that it is over diagnosed” was not revealed
by him
in his reasons, or anywhere during the trial to which we have been referred. Nor
was the basis upon which his Honour observed
that the “authoritative
opinion” to which he alluded also suggested that ADHD “does not
exist”.

In
circumstances where there was unchallenged admissible expert opinion evidence
that the child B exhibited a “degree of ADHD”,
it was not open to
the trial Judge, without reference to admissible evidence which was before him,
to speculate as to whether or
not ADHD existed or was exhibited by the child B.
His Honour’s personal opinions, whatever their basis, were no substitute
for evidence.

Ultimately,
it is apparent from the balance of the paragraph that the trial Judge accepted
what an unidentified, and presumably unqualified
editor of a newspaper
apparently said about ADHD. It is readily apparent that, notwithstanding that Dr
R had not expressed the cynicism
so colourfully articulated by the newspaper
editor, the trial Judge preferred the opinion of the latter.

Our
conclusion that the trial Judge’s opinions in relation to ADHD and Ritalin
were influenced by the Sydney Morning Herald
editorial is reinforced by the
first sentence of the paragraph immediately following the reference to the
editorial. His Honour there
said that if the child B resides with the mother
“and she retains a say in his medical treatment he may revert to
dependence on Ritalin” (emphasis added). Notwithstanding that there
was no evidence that the child B had ever been dependent upon Ritalin,
inappropriately prescribed it, or that the mother had ever inappropriately had
the child take Ritalin, the trial Judge clearly, and
in the face of Dr R’s
evidence, which was uncritical of the mother in relation to Ritalin, regarded
the child B taking Ritalin
in the future as undesirable, and reflecting
adversely upon the mother.

It
is difficult to see how, by reference to the trial Judge’s own reasons,
such a view could not have been reliant upon, or
influenced by the newspaper
editorial from which he quoted. If it was not, in the circumstances it could
only, and impermissibly,
have been based upon his Honour’s own views about
those matters.

Family Violence

The Full Court stated, quoting the trial judge:

It
is my assessment, after reading all the relevant police material in evidence,
the affidavit evidence and seeing and hearing both
the mother and father giving
oral evidence, that the mother is not, and has never been, fearful of the father
but that she has abused
the system in place to protect people who are in genuine
fear, and have a proper reason to be fearful, for the purpose of getting
her own
way and gaining a tactical advantage in these proceedings. To do so she must
have manipulated [the child B] and [the child
H] so they would be fearful of
their father, not for any benefit to them. Such manipulated fear in the boys is
the only explanation
for the preschool teacher’s complaint, although it
was no doubt made because of information the mother supplied and because
of her
urging. It is not, in my opinion, a coincidence that Senior Constable [P]
reached much the same conclusion as I have about
the motives, bona fides, and
attributes of the mother. I regard her as attempting to use the Court in the
same way as she attempted
with more success to use the police and Local Court.

Later
in his reasons, the trial Judge referred to an episode on 4 January 2010, and
said:

One
4 January 2010, the father attended ... Police Station in response to a police
request. He was charged with two counts of breaching
the AVO, which was in place
at the relevant time. The charges were based on the text messages of 5 and 11
December. He was initially
refused bail, and spent from 4 January to 27 January
at ... jail. It is a testament of the ridiculousness of the situation that,
on
27 January, the father admitted what it was alleged he said and was convicted.
It does not reflect well on the legal system and
those who refused bail, that
the Magistrate sentenced the father to 14 days imprisonment after he had
already spent more than that
on remand. He was immediately released. The father,
his mother, the police, and the Magistrate who refused bail and could not have
seriously considered the circumstances, further empowered the mother. That this
is the case is shown by what next occurred.

On
15 February 2010, the father went to [the child B]’s school. He had, in
May 2009, after I had allowed him to collect the
children from school and return
them to it, met the Headmistress, [Ms M], to inform her of the situation. He had
requested copies
of [the child B]’s school reports, including that for the
end of 2009. He collected this on 15 February 2010. Either [the
Headmistress],
who in many ways has demonstrated that she is quite prejudiced
against the father in favour of the mother, contacted the police or,
as is more
likely, contacted the mother, who had already told her not to deliver reports to
the paternal grandparents. The mother
or [the Headmistress] contacted the police
and claimed that the father had breached the AVO, which he had because of its
ludicrous
terms. One of these was that the father was not to approach the
children’s school. The police charged the father on 22 February,
but
he was granted bail. He had, between 18 February when the police first contacted
him about the matter and 22 February made an
application to discharge or modify
the AVO.

When
the matters were due to be heard on 5 May 2010, the mother refused to attend but
wanted the orders to continue unchanged. The
charge of breach was withdrawn and
dismissed and the term of the AVO was reduced from five years to one further
year concluding on
5 May 2011. The children were also removed from the
“protection” of the AVO and the condition about approaching their
school was deleted, as it should have been in view of my still effective orders.
The terms affecting the children and school should
not have been there in the
first place.

Later
again, the trial Judge recorded:

...
On any view, the facts up to that time [November 2007] establish that the father
could not limit his alcohol consumption to acceptable
levels and was very prone
to lack of self-control and angry outbursts. These resulted, in Ms [T’s]
[the Family Consultant’s]
understanding, in damage to property, an assault
on police, pub brawling and similar, as well as disparaging language directed at
the mother; sometimes in the presence or hearing of the children, but not in
assaults on the mother or children.

His
Honour also later recorded:

The
father was no more candid with Dr. [R] than the mother. He said he was
“now” drinking only one or two alcoholic drinks
each week, and had
no current alcohol problems. Ludicrously, he said he had been a heavy drinker,
drinking up to five beers per day.
Surely, to get as drunk as he often was, he
was drinking much more than that, and would be likely to believe that to drink
five beers
a day would be very modest consumption. He attributed the breakdown
of his relationship with the mother in part to her objection
to his alcohol
consumption. This is probably true. The paternal grandmother understated the
father’s alcohol problem to Dr.
[R] and excused it by blaming the
mother.

At
trial,Counsel for the ICL submitted the following in relation to the
issue of violence:

It is submitted that the Court would be persuaded
that there is substance to the mother’s complaints about breach
AVO’s,
given the number of convictions and the sheer number of messages,
coupled with the father’s admission to the police that he
recognised that
he had breached the orders on a number of occasions. The Court would also accept
that her concerns that the children
or either of them had been sexually
interfered with were genuinely held, and based on the unchallenged evidence of
[Dr B] it is clear
that [the child B] made some disclosures even though JIRT
held that the charges could not be substantiated, and that she was perhaps
encouraged in those beliefs by the responses she received from [Ms G], [Mr F]
and [Dr N]. ...

The
trial Judge’s ultimate conclusion with respect to family violence was:

The
mother’s allegations of family violence have already been chronicled and
rejected. There is still a family violence order
which, as recently as May 2010,
the father contested and had reduced in duration. In my assessment, it was
largely made without justification
and should not be permitted to inhibit what
would otherwise be appropriate parenting orders.

Earlier,
his Honour said:

There
are no significant practical difficulties and expenses which ought to arise
whether the boys live with the mother, the father,
or the paternal grandmother,
which will significantly affect the maintenance by the boys of their right to
have personal relations
with, and direct contact with, both parents and all the
relevant family members on a regular basis. The main source of such practical
difficulties to date has been the attitudes of the mother, those who support
her, those who have empowered her such as the Police
and Local Courts in
granting AVO’s to “protect” her and the children
unnecessarily, and the father’s weakness
of character which makes him
vulnerable to her manipulative and deceptive actions.

As
is readily apparent, notwithstanding that courts charged with hearing and
determining AVO proceedings had determined such proceedings
in the
mother’s favour, in criticising the mother in the way in which he did, the
trial Judge effectively criticised the person
who had been found by courts
dealing with such matters to have been the victim, and considered the father,
who had been found to
be the perpetrator of family violence, the victim.

Earlier
still, the trial Judge found the mother’s behaviour had been “so
serious and potentially damaging to the children”
as to raise the prospect
of the children only having supervised contact with her. His Honour had also
found that “[n]ow that
the parents live apart, there is virtually no
prospect of incidents of violence occurring between them”. His Honour
proceeded
to find that “any risk that [the father] would harm the children
either physically or psychologically as a result of abuse,
family violence or
neglect is such that the risk is so low as to be within acceptable
limits”. Those findings have not been
challenged in this appeal....

The
conclusions of the trial Judge with respect to the topic to some extent appear
to reflect his personal views in relation to the
operation of family violence
laws in this country, and of those who rely upon them, or support and assist
those who do. Similar views
found expression elsewhere in the
trial Judge’s reasons, such as the following paragraph:
126. [The
child B] had continued to see [Mr F], is a senior counsellor with the NSW Child
and Adolescent Mental Health Service, and [Ms
G], a biased clinical psychologist
at [E Organisation]. [Ms G] made a report that the children could not spend time
with the father
following an alleged relapse in his behavioural problems. [Ms G]
is so biased that, in a report she made on 23 September 2008, she
said
“[the child B] has disclosed sexual assault to a doctor.
Unfortunately[my emphasis][the child B] has not disclosed
to JIRT.” [The child B] was referred to [Dr N], no doubt because
the mother had approached [Mr F] or [Ms G].(emphasis added)
and

Further
support for our conclusion is gained from the following extract of the passage
which we have earlier set out in full:

...
It is typical of the mother’s case that she claims many acts of violence
against her by the father, but provides next to
no detail or specific evidence
of it. I regard the mother as being an exaggerator and habitual liar, and as
being exceptionally willing
and able to manipulate situations to her perceived
advantage, especially by using politically correct do-gooders and people who
have
a duty to deal with social problems and the like, but not the time,
inclination or ability to distinguish truth from fiction. I do
not completely
discount the allegations of violence. I think they have been greatly exaggerated
in number, extent and effect by the
mother and regard the limit of the
father’s violence toward the mother as likely to be drunken verbal abuse,
threats and occasional
damage to property.

No comments:

"To Stephen,
Thank you for all your support on this special day. Bringing about awareness about Domestic Violence is so very important. Thank you for your choice to stand up against it.
Blessings,
Narelle".
Narelle Warcon, author of Blonde Roots

I am one of Australia's leading surrogacy and divorce lawyers. I was admitted in 1987, and have been an accredited family law specialist since 1996.
I am a partner of Harrington Family Lawyers, Brisbane.
I am an international representative on the American Bar Association's Artificial Reproductive Technology Committee. I am the first international Fellow of the American Academy of Assisted Reproductive Treatment Attorneys. I am one of 33 Australian practising lawyers who are Fellows of the International Academy of Family Lawyers, one of the most prestigious family law groups in the world. I am a founding member of the Australian Chapter of the Association of Family and Conciliation Courts.
I have written and spoken extensively about family law, domestic violence and surrogacy.
I have handled pretty well every type of family law case there is known in over 30 years, and have advised surrogacy/fertility clients from throughout Australia and at last count 24 countries overseas. I have obtained surrogacy orders in Qld, NSW, Vic and SA- the only lawyer to have done so.